He’d Better Mean It

Issuing a blunt warning to Democrats, the Senate majority leader, Bill Frist, said Thursday that the newly strengthened Republican majority would not allow filibusters to block action on judicial nominees in President Bush’s second term.

“One way or another, the filibuster of judicial nominees must end,” Dr. Frist, Republican of Tennessee, said in a speech to the Federalist Society, a conservative lawyers’ group. “The Senate must do what is good, what is right, what is reasonable and what is honorable.”

I hope he’s correct as I don’t recall any amendments to the Constitution stipulating that the Senate needs to muster 61 votes to confirm judges. Here’s what the Constitution says:

From Article II, Section 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Amdassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States …” [emphasis mine]

The “Advice and Consent” clause prevents the President from appointing officials who might be repugnant to the people, and so provides that such individuals must have the consent of the Senate. The advice portion may be said to manifest in the public and private hearings typically held in conjunction with a specific nominee.

But nowhere does it say that some sort of supramajority is required (as the Constitution does of other things like removals or in the making of treaties). To amend the Constitution by parliamentary maneuvers is far more repugnant to the rights and liberties of Americans than any single judge or official ever could be. That power does not vest in forty Senators – or even a hundred. It vests in the People of the United States, in Congress assembled, and in the States themselves, which, like the House of Representatives, are closer to the people. A bicameral legislature, three branches of government with separate powers was all intended to prevent just such an usurpation of power.